Jagadisan, J.
1. The suit out of which this Letters Patent Appeal arises was instituted by the respondent, who will be referred to as the plaintiff in this judgment for a declaration that he has a right of way across the pathway marked A B C D in the plan attached to the plaint and described in Schedule A to the plaint, and, for a permanent injunction restraining the appellants, who will be referred to as the defendants, from interfering with his rights and for a mandatory injunction to demolish the wall marked X Y in the said plan.
2. The learned Third Assistant City Civil Judge, who tried the suit held in. favour of the plaintiff. On appeal by the defendants before the Principal Judge, City Civil Court, Madras, the judgment and decree of the trial Court were reversed and the suit was dismissed. There was a second appeal to this Court by the plaintiff which was heard by Kailasam, J. The learned Judge reversed the judgment and decree of the lower appellate Court and restored that of the trial Court. He, however, granted leave and hence this appeal has been preferred under Cl. 15 of the Letters Patentby the aggrieved defendants.
3. The dispute between the parties is as regards the right of way to the premises belonging to the plaintiff called 'Rushkrum' from Mount Road, Madras across the premises known as 'Khaleel Mansions'. Khaleel Mansions buildings abut the Mount Road. But the premises Rushkrum docs not adjoin Mount Road but lies in the hinterland. On the west of the buildings a road called Woods Road runs north to south and on the east there is another road called Club House road, also running north to south. That there is some access to the premises Rushkrum from both these roads is not in dispute. But the question is whether the owner of said premises is entitled as of right to use the pathway A B C D from Mount Road and get access to his building.
Shortly put, the case of the plaintiff is that he has got a right of easement, either acquired by prescription or by an implied grant, and that the defendants have no right to interfere with his enjoyment of that right. The defendants dispute this position and they contend that the plaintiff has no right of easement, and that, even if he has such a right, it has become extinguished by reason of the provisions of a Central enactment called the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954-
4. We shall now set out briefly the title to the properties known as 'Rushkrum' and 'Khaleel Mansions'. The entire property which was known as Nawab's Gardens originally belonged to the Princess of Arcot. She leased out the property under Ex. A.4 dated 20-11-1905 in favour of Mr. and Mrs. Thomas Robert Frost. The property so leased out was called Rushkrum and it bore the number 1/35 Mount Road, in the Corporation register. One Agha Mohamed Khaleel Shirazee purchased this property from the Princess of Arcot on 30-8-1910 under the conveyance Ex. A,5 in the case. Khaleel Shirazee, after purchasing the property, made applications to the Corporation of Madras for recdnstructing and remodelling the property. The premises now known as Khaleel Mansion was put up by him during the years 1923 and 1925.
So there was a common owner owning the property 'Rushkrum' and the subsequently constructed property as 'Khaleel Mansions'. Khaleel Shirazee effected a settlement of his properties in favour of his sons under Ed. A.2 dated 1-4-1925. The plaintiff, who is one of the sons of Khaleel Shirazee, obtained under this settlement the property 'Rushkrum' lying behind Khaleel Mansions and which constituted old Nos. 1/35-A and 1/35-B. The present numbers are 35/1 and 35/2. The old numbers in respect of' Khaleel Mansions were 1/.35 and 1/35-C and its present number is 35. 'Khaleel Mansions' was settled in favour of ant other son of Khaleel Shirazee, one Abbas Khaleel. Khaleel Mansions buildings were in two blocks and the passage A B C D lies centrally in between these blocks and that was the opening through which people frequenting 'Rushkrum' used to pass and repass.
Abbas Khaleel became an 'evacuee' he having left for Pakistan and his property Khaleel Hansions described in the plaint schedule B was declared to be an evacuee property under the Administration of Evacuee Property Act, 1950. The property vested' in the Custodian of Evacuee Property and also in the Central Government by appropriate notification under the Displaced persons (Compensation and Rehabilitation) Act 44 of 1954, to the provisions of which we shall make a detailed reference a little later.
5. Admittedly 'Khaleel Mansions' which became evacuee property was sold by the Central Government in exercise of the powers conferred upon them by the Statute and the defendant became the purchasers of the property on 12-5-1955. After purchasing the property they raised a wall XY marked red in the plan and effectively blocked the passage from Mount Road leading upto the building Rushkrum. This was in denial of the plaintiff's right of access to Rushkrum from Mount Road.
6. The plaintiff claims that he has acquired a right of way through A B C D by prescription, or in the alternative, by grant. We may at once, mention that there is no express grant in favour of the plaintiff from the original common owner Khaleel Shirazee, but, a right of easement can be inferred from facts and circumstances which would necessarily imply a grant.
The plaintiff therefore submits that the acts and conduct of his father Khaleel Shirazee were such as to indisputably lead to the conclusion that he must have intended to confer a right of way through A B C D to gain access to Rushkrum, the property settled upon him. Of course, the plaintiff's case is that this passage has been used by the persons in occupation and management of the premises Rushkrum from time immemorial and that even if the facts would not be suggestive of an implied grant by Khaleel Shirazee, the necessary ingredients for acquisition of a prescriptive right are present. A volume of evidence has been let in on behalf of the plaintiff to prove that persons who were tenants in portions of the building Rushkrum and persons who had to go to that building every day by reason of their employment in the offices located therein used to get access to the building only through the gateway A B C D.
7. Both the trial Court as well the lower appellate Court have accepted the evidence on the side of the plaintiff as being reliable, but, while the trial Court took the view that it would be sufficient to establish prescriptive title the lower appellate Court reached the contrary conclusion and held that on the peculiar facts and circumstances of the case the user must have been permissive and not as of right.
8. We do not feel called upon to discuss the oral evidence in the case as the only question really in issue now before us is whether it can be said that the user of the path-way was not as of right as the defendants would contend. The lower appellate Court has recorded a finding that the user could not have been in assertion of any right. The judgment of the lower appellate Court is unsatisfactory and we have no doubt that the finding of the learned Judge is not one based on evidence on record, but is an unwarranted surmise. The reasoning of the learned appellate Judge can best be stated in his own words. The learned Judge observed:
'In the present case as stated earlier, the father of these two gentlemen was in common managing both the properties, and therefore there is every room for presuming that those who made use of the passage in Mount Road - the suit passage did so under the implied permission of Khaleel Shirazee. It would be difficult to assume that such user was an adverse user by those persons who got access through the passage to Kassim Khaleel's property.'
It appears that after the settlement in favour of his two sons the settlor, the father, was in management of both sets of properties. Therefore, the learned Judge would say that any user of the path-way by persons frequenting the premises Rushkrum must have been only with the permission of the original owner of the property who had divested himself of all title to the property and who was in possession only as a manager. This reasoning, in our opinion, is fallacious. If Khaleel Shirazee only occupied the position of manager, and in fact he was occupying only such position, he was representing the owners of both the buildings. There is no merger of the two owners in Khaleel Shirazee either by reason of the fact that he was the father or by reason of the fact that he was functioning as the common manager. Therefore, if he, as the manager of the plaintiff's property and also as the manager of the property of Abbas Khaleel, allowed persons to use the path-way, we do not see why it should not be taken to be one in assertion of a right of the owner of the building Rushkrum and should be deemed to be only as permissive by the sufferance of the owner of 'Khaleel Mansions'. There is nothing unnatural or artificial in holding that as manager of the premises Rushkrum, Khaleel Shirazee acquired a right as against the owner of Khaleel Mansions especially when he himself had constructed Khaleel Mansions in two blocks of buildings allowing a pathway in between these two blocks.
9. Mr. R. Gopalaswami Aiyangar, learned counsel for the defendants, raises the following contentions before us:
1. The evidence in the case does not establish that the right of way through A B C D was exercised as of right for a period of twenty years as required by the provisions of the Indian Easements Act and that the plaintiff cannot claim a prescriptive right of way as an easement.
2. The plaintiff cannot sustain a claim based upon an implied grant on the facts and circumstances of the case particularly because the person who could have conferred the grant failed to confer it expressly in the document whereby he made a gift of the dominant tenement in favour of the plaintiff.
3. The prescriptive right of easement if any put forward by the plaintiff must fail as there is no proof of continuous exercise of the right of way and as there is proof of a discontinuance or interruption if the exercise of that right during the period of twenty years commencing from 1923.
4. The right of easement, whether it was acquired by prescription or by grant, was extinguished by the vesting of the property in the Central Government by virtue of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act of 1954.
10. We shall advert to these contentions and deal with them seriatim.
11. The ingredients necessary for the establishment of a prescriptive right of way are statutorily provided for under Section 15 of the Indian Easements Act. The relevant words of Section 15 in regard to a right of way are as follows:
'Where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right ......... shall be absolute.'
Now, the words 'as of right' denote that it is not enough that the right is merely exercised but that it should be exercised consciously in assertion of the right claimed. A mere user of the right of way by passing and repassing may not as such be conclusive evidence on the question whether the user has been as of right or not. But at the same time, it must be remembered that the persons who exercise the right of way need not openly proclaim that they are doing so because they have a right to do so. The true meaning of the expression 'as of right' is that the enjoyment of the right should not be secret or by stealth or by sufferance or the leave and licence of another person. It should be nee precario. Dependence on the will of another, would render the right precarious by robbing it of all freedom and volition on the holder of the right.
Under the English law a presumption that the exercise was as of right can be inferred from long user. In Phillips v. Halliday, 1891 AC 228, Lord Herschell stated-
'It is a well settled principle of English law that the right should be presumed in such cases to have a legal origin if such legal origin is possible; and the Court will presume that all those acts were done and those circumstances existed which were necessary for the creation of a valid title. Every presumption is made in favour of long user; and not only ought the Court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such, inference is irresistible, but it ought to presume everything that it is reasonably possible to presume in favour of such a right.'
(Halsbury's Laws of England, Vol. 12, 3rd Edn. pages 545'546)-
This principle of English law has found acceptance in India and has been frequently applied in construing the provisions of the Indian Easements Act. Reference need be made only to a few cases: Swaminatha Mudaly v. Velu Mudaly, 4 Mad LW 128 : AIR 1917 Mad 386; Kunjammal v. Ratnam Pillai, ILR 45 Mad 633 : AIR 1922 Mad 5 and Rambhai v. Vallabbhai, : AIR1921Bom430 . Long continued user gives rise to a presumption, which however, is rebuttable by proof to the contrary, that it must have been as of right and not with the leave and licence of another.
12. It is no doubt true that the element of exercise of the easement right in assertion of a right is one of the essential ingredients which a claimant has to establish. One should therefore be loath to presume a particular fact which the law ordains to be present before a right can be established. But facts need not always be proved be positive evidence and can be proved by inference from a set of facts. Therefore there is nothing improper in a Court drawing a presumption from long continuous user of a right that such user which was open, notorious and persistent must have had a legal origin and must have been in the conscious exercise of a right. The animus of the person exercising the right is certainly a question of fact which has to be determined from all the circumstances of each case. The fact that the claimant did not obtain any licence or permission express or implied from the owner of the servant tenement to enjoy the right would itself be cogent evidence in regard to the nature of the exercise of the right.
There may be cases in which the relationship or friendship between the owners of the dominant and servient tenements may have led to the exercise of the right. In such cases there is scope for an argument that the owner of the dominant tenement was merely allowed to enjoy the, right by the servant owner. But we doubt, whether it can be said, in a plain case, where nothing more appears except a long user for over the statutory period and a close relationship or friendship between the two owners that the user was only permissive and could not be attributed with the character of 'as of right'.
We are of opinion that the question is pre-eminently one of fact and while there are no infallible tests which could be applied to find out whether a user was one as of right or not it would not be improper for any Court to draw an inference from long user as such that it was rather as of right than not. We are satisfied that on the evidence on record which has been adverted to and dealt with not merely by the Courts below but also by our learned brother Kailasam, J., that in this case the user of the right of way through A B C P was, of course, as of right. As we have already pointed out the lower appellate Court committed the error of assuming that the user must have been permissive because of the fact that the properties remained under the common management of Khaleel Shirazee for a long number of years. We therefore reject the first contention raised on behalf of the defendants.
13. It will now be convenient to refer to the third contention before we discuss the question of implied grant of easement, viz., that the acquisition of prescriptive right was not complete due to interruption. The argument based upon discontinuance or interruption of the right is put forward thus. The military authorities took on lease both Khaleel Mansions and Rushkram and obtained possession in the year 1944. The point urged is that during that period both the dominant and the servant tenements were in the possession and enjoyment of the same person and any access gained through the disputed path way A B C D by passing and repassing that way during that period would not enure to mature by lapse of years, the claim of a prescriptive right. Section 49 of the Indian Easements Act provides for suspension of easements. It reads:
'An easement is suspended when the dominant owner becomes entitled to possession of the servant heritage for a limited interest therein, or when the servant owner becomes entitled to possession of the dominant heritage for a limited interest therein.'
Easement rights are suspended when there is a merger of the servient and the dominant tenements in the same individual and results in unity of possession. The right is not extinguished unless there is complete fusion of the seisin of the two estates in fee simple. The suspended easement by unity of possession or any other combination of interests revives the moment there is a severance of the unity of the tenements. Unity of possession, during the running of the statutory period would be fatal to the acquisition of the right.
'Where the same person has been in legal occupation as tenant of the servient and dominant tenements it is obvious that the use of the servient tenement by the common occupier could not be prevented by the owner of that tenement. The operation of the unity is to destroy the effect of the previous user by breaking the continuity of enjoyment' (Gale on Easements, 13th Edn. page 171).
This is the true legal position which would govern the acquisition of prescriptive right under the Indian Act. Section 15 of the Indian Easements Act lays down that the enjoyment must be without interruption. The continuity of the enjoyment would be broken, if during the prescript five period, the servient and the dominant tenements happen to combine and vest together in common ownership or possession. The period prior to such unity in ownership and possession would not be reckoned in computing the number of years of enjoyment. A fresh period of twenty years is necessary to acquire an easement after the lesser of the unity. Modhoosudan Dey v. Bissonauth Dey, 15 Beng LR 361; Damper v. Bassett, 1901 20 Ch 350; Hyman v. Van De Bergh, 1908 1 Ch 167. The view expressed in some English cases, Ladyman v. Grave, (1871) 6 Ch A 763, Mallam v. Rose, 1915 2 Ch 222, that the period before the break could be tacked on to the subsequent period of enjoyment after severance of unity, cannot be followed in cases arising under the Indian Act.
What the statute requires is an unbroken and continuous stretch of 20 years enjoyment and not an over all period of 20 years with intermittent enjoyment in patches. The question now is whether there are enough facts to show that the two premises were in common occupation of a single tenant before the prescriptive period had run out. The plea in the written statement is both the premises came to be occupied by the military authorities in the beginning of 1945. The exact date does not appear from the records. The necessary facts sufficient to establish suspension of easement rights invoking the aid of Section 49 of the Act on the doctrine of unity of possession are hardly, present. We must, however., point out with respect to Kailasam, J., that his observation that the easement is not extinguished by the dominant and servient tenements vesting in the same person as lessee, is somewhat wide. The question involved in the case is not whether the right was extinguished but whether there was interruption to arrest the running of the prescriptive period. The third contention of the defendants fails.
14. We have now to consider the question whether the plaintiff can found his case on an implied grant of easement. The settlement deed by Khaleel Shirazee, Ex. A.2, dated 1-4-1925, in favour of the plaintiff does not of course confer a right of easement in his favour through the pathway A B C D. If that had been provided for the question need not be further discussed. Is there anything implicit in the document to show that the grantor must have intended to confer a right of way to the gifted property from the main road, viz., Mount Road?
The property given to the plaintiff is described as follows:
'House and ground No. 1/35-B and 1/35-A at Mount 'Road, Pudupakkam, Madras, within the subregistration district of Triplicane and registration district of Madras-Chingleput, bounded on the north by Woods road, south by Club House road, west by premises No. 1/35 and 1/.35-C, east by land of Mohamed Khaleel Shirazee, bearing old S. No. Part of 33 and re-survey No. 31:4, of the value of Rs. 92,000.'
At the time of the settlement the property given to the plaintiff had the amenity of being reached from Mount Road. In fact Khaleel Mansions building itself came into existence only sometime between 1923 and 1925 and when Khaleel Shirazee made a gift of Rushkrum to the plaintiff knowing full will that the right of way to the building was from the Mount Road and executed the document without expressly stating that the old right of way should continue, it would not amount to the plaintiff (donee) being deprived of that right. It is significant to note that there is no alternative right of way mentioned in that document of gift. If nothing was said in the document it would rather mean that the donor, wanted the old state of affairs to continue and not that he was averse to conform any right on him. We are unable to agree with Mr. Gopalaswami Aiyangar's contention that because there are no express words in the document of gift in favour of the plaintiff it would be impossible for a Court to spell out an implied grant. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least the contention that the .absence of an express grant would negative an implied grant is quite untenable.
15. An easement may arise by implication under a grant, if an intention to grant can properly be inferred, either from the terms of the grant, or from the circumstances. An easement may also arise, by what may be called a constructive grant, from general words in the grant, read in the light of the circumstances. (See Gale on Easements, 13th Edn. page 67-68). It is the intention of the grantor whether he can be presumed to have intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement.
For example in Roberts v. Karr, 1809-1 Taunt 495, one Pratt had released to Campaign land of unequal width, described as abutting east on a new road en Pratt's own land. It abutted in the widest part on the road; but in the narrower part a strip of the grantor's land (which he alleged that he had intended to reserve) intervened between the road and the premises granted. The question arose whether Compigne's release would enure so as to confer upon him a right of access over the reserved strip of land. It was held that Pratt and those claiming under him were concluded by the description in Compigne's release from preventing Compigne or his assigns from coming out into the road over the strip of land. Gale in his text book refers to this case and quotes the following observations of Lord Mansfield, C. J. :
'It is not a sufficient answer to say, 'You have told me in your lease, this land abuts on the road; you cannot now be allowed to say that the land on which it abuts is not the road'.'
The rule seems to be that where there is a grant of property the grantor must be presumed to have intended in the absence of express words to the contrary, that the grantee should not merely get the gift absolutely but should also enjoy all amenities thereto, necessary for its reasonable and comfortable enjoyment. Otherwise the gift itself may become so utterly useless that it would amount to not having been made at all.
16. As to the true meaning of an implied grant or an implied obligation arising out of a contract or conveyance the following observations of Cotton, L. J., in Birmingham Dudley and District Banking Co. v. Ross, (1888) 38 Ch D 295 may be usefully quoted:
'By an implied obligation or an implied right I mean this: an obligation or right arising not from the express words of an instrument, nor from that which, having regard to the circumstances must be considered the true meaning and effect of the words of the instrument; but that obligation or that right which results from the position in which the parties have placed themselves by the contract ............ When the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results.'
In our opinion the facts of the present case are such as to lead us to the conclusion that Khaleel Shirazee must be presumed to have conferred a right Of access to the grantee of Rushkram from the Mount road direct at the time when he made the settlement of the two properties Rushkrum and Khaleel Mansions. Even if it were to be held that the plaintiff has failed to establish a prescriptive right of easement he would still be entitled to claim the right on the footing of an implied grant.
17. We have now to consider the effect of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954, on the plaintiffs right of easement. The contention urged by Mr. Gopalaswami Aiyangar is that under Section 12 of the Act the property, Khaleel Mansions, which became the property of the evacuee Abbas Khaleeli vested in the Central Government 'free from all encumbrances'. Reliance is placed on Section 12, Sub-section (2) which reads:
'On the publication of a notification under sub-section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall .vest absolutely in the Central Government free from all encumbrances.'
It is urged that an easement claimed on a property amounts to an encumbrance and that the alleged right of way, if any, across Khaleel Mansions became extinguished by reason of the operation of Section 12(2) of the Act. There cannot be any doubt that the evacuee property notified by the Central Government under Section 12(1) vests in the Central Government free from all encumbrances. Section 14(2) also reinforces this position. That reads:
'The compensation pool shall vest in the Central Government free from all encumbrances and shall be utilised in accordance with the provisions of this Act and the rule made thereunder.'
It may be noted that the word 'encumbrances' is not defined under the Act or even under the General Clauses Act. The object and purpose of this Act is to rehabilitate displaced persons. Section 12 gives the power to acquire evacuee property to the Central Government;. Section 13 provides that an evacuee shall be paid an evacuee compensation in respect of the property acquired under Section 12 in accordance with such principles and in such manner as may be agreed upon between the Government of India and Pakistan. Section 14 defines compensation pool. That consists of all evacuee property acquired under Section 12 including the sale proceedings of such property and profits and income accruing from such property; cash balances lying with the Custodian; contributions in any form as may be made to the compensation poolby the Central Government or any State Goyernanent; such other assets as may be prescribed.
Section 15 provides -that no property which forms part of the compensation pool and which is vested in the Central Government under the provisions of the Act shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of any Court or other authority. The scheme of the Act therefore is to .vest the Government with absolute title to the property free from all encumbrances and to sell the property in any prescribed manner and make the proceeds of sale available to the displaced evacuee.
18. The word 'encumbrances' in regard to a person 'or an estate denotes a burden which ordinarily consists of debts, obligations and responsibilities. In the sphere of law, it connotes a liability attached to the property arising out of a claim or lien subsisting in favour of a person who is not the owner of the property. Thus a mortgage, a charge and vendor's lien are all instances of encumbrances. The essence of an encumbrance is that it must bear upon the property directly and indirectly and not remotely or circuitously. It is a right in re alien circumscribing and subtracting from the general proprietary right of another person. An encumbered right, that is a right subject to a limitation, is called servient while the encumbrance itself is designated as dominant. Dealing with encumbrances Salmond in his book on Jurisprudence, nth Edn. at page 294, observes as follows:
'It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass, part of it being cut off to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to, and limited by, that of a tenant to the temporary use of the property; or to the right of a mortgagee to sell or take possession; or to the right of a neighbouring landowner to the use of a way or other easement; or to the right of the vendor of land in respect of restrictive covenants entered into by the purchaser as to the use of it; for example, a covenant not to build upon it.'
In its widest sense the word 'encumbrances' must necessarily include a right of easement such as a right of way.
19. Mr. Gopalaswami Aiyangar places relianca upon the decisions dealing with cases arising under the Land Acquisition Act where also there is a provision for vesting of the acquired property in the Government free from all encumbrances. Section 16 of that Act states that when the Collector has made an award he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances. Section 17 provides that in cases of urgency the Collector without making an award may, on the expiration of 15 days from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any land which shall thereupon vest absolutely in the Government free from all encumbrances. The word 'encumbrances' under the Land Acquisition Act has been understood to include easements. (See Taylor v. Collector of Purnea, ILR 14 Cal 423, Municipal Corporation, City of Bombay v. G. I. P. Rly., Co., ILR 41 Bom 291 : AIR 1916 PC 3. Abdul Karim Khan v. Managing Committee, George High School : AIR1936All879 , Rashid Allidina v. Jiwandas Khemji : AIR1943Cal35 .
Should a similar construction of the word 'encumbrances' be adopted in construing the provisions of the Displaced Persons (Compensation and Rehabilitation) Act of 1954 is the question. We may point out that it cannot be said that the two Acts are in pari materia and that what would be a proper and reasonable construction of the word 'encumbrances' in the Land Acquisition Act would equally be reasonable and proper in construing the same expression in the Displaced Persons (Compensation and Rehabilitation) Act.
Under the Land Acquisition Act the owner of the dominant tenement claiming a right of easement over the property acquired which would be the servient tenement is a 'person interested' within the definition of that word in Section 3 of the Act. Section 3 defines 'person interested' as follows:
'The expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.'
The holder of an easement right can file objections to the notification under Section 4 of the Act. Section 9 of the Land Acquisition Act which provide for issue of notice to person interested would of course govern also the holder of an encumbrance. If a person has a right of way over the property acquired under the Land Acquisition Act to go t0 his property which is not acquired and if there is no other access to his property, the acquiring authority would certainly take into account that fact before acquiring the servient tenement and safeguard the interest of the objector, viz., the owner of the dominant tenement.
It stands to reason to assume that in such cases either the acquisition will be dropped or an alternative right of way would be provided for, for the objector. But there is no such provision for objection in the Displaced Persons (Compensation and Rehabilitation) Act of 1954, and if the construction contended for by the appellants were to be accepted he would practically be remediless. We are quite unwilling to hold that the word 'encumbrance' in the Displaced Persons (Compensation and Rehabilitation) Act should include a right of easement following the decisions rendered under the Land Acquisition Act.
20. Giving the word 'encumbrances' its full and comprehensive meaning in interpreting Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, the position that would emerge is this. Easement is an encumbrance; the statute vests the property in the Central Government rid of all encumbrances; and therefore the burden of easement on the servient property ceases to exist and the owner of the dominant tenement loses a valuable right which may be quite absolutely essential for its enjoyment. Is such an unjust construction of the Act inevitable or unavoidable? No, if another construction is possible without straining and distorting the statutory language it is not a bad rule of interpretation to catch the sense of the words used in the light of the object and purpose of the Act and in the context of %e operation of the Act to achieve certain results to fulfil its objects.
The Court that interprets a statute may legitimately avoid pitfalls in the shape of absurd consequences and things which would be shocking to elementary notions of justice ......... It would not be consistent with any sense of equity, justice or fair play to hold that an owner of property loses the right of way to his property overnight for the simple reason that his neighbour, a servient owner, migrated to Pakistan and his property came to be administered as evacuee property under the law of the land. The object of the enactment clearly is to compensate the loss suffered by the evacuee by abandoning his properties in the India , Union. That cannot and should not lead to the result of enabling the evacuee to get rid of all his obligations, monetary or otherwise, in regard to the property left behind. It would be safe to assume that the intention of the Government was not merely to protect the interest of the departed evacuee but also to safeguard the rights and interests of person still in the territory and who had enforceable rights against the person and property of the evacuee.
21. But the question is how are we to understand the expression 'encumbrances' in the Displaced Persons (Compensation and Rehabilitation) Act. So far as the property taken over by the Government is concerned, it seems to be clear that the Central Government should have an unencumbered title in regard thereto. There would be no difficulty so far as mortgages over the property are concerned. Section 73, Sub-section (2) of the Transfer of Property Act provides that where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage money out of the amount due to the mortgagor as compensation. This section embodies the principle known as substituted security.
It is an equitable rule that where a claim is enforceable against a particular property and the title to that property is divested from the obligor the claim would be enforceable against its equivalent in his hands or with his representatives. Even in cases of a charge or lien the same principle might be invoked though in terms of Section 73(2) would apply only to mortgages as such.
There is no provision either under the Displaced Persons (Compensation and Rehabilitation) Act or under the rules framed thereunder for payment or any compensation to the person who is deprived or a right of easement by reason of the vesting of the property in the Central Government. We are of opinion that in the context of the object and purposes of the Displaced Persons (Compensation and Rehabilitation) Act, the encumbrances referred to in Section 12 of the Act would only mean those encumbrances in respect of which the holder would be in a position to assert his rights as against the sale proceeds of the property or as against the compensation amount payable by the Government to the evacuee. It is in this limited sense that the word should be understood in this Act, as otherwise, it would lead to anomalous results entailing loss of valuable property rights to persons without payment of any compensation.
We do not suggest that it would not be open to Parliament to enact a measure of this description which may cause prejudice and hardship to particular persons (See Shree Ambarnath Mills Corporation, Bombay y. D. B. Godbole, : AIR1957Bom119 ). But we are firmly of opinion that while construing the provisions of an enactment, regard can be had to a presumed intention of Parliament not to deprive person of rights of property without adequate compensation. We are therefore unable to accept the contention of Mr. Gopalaswami Aiyangar that the plaintiff's right through A B C D became statutorily extinguished by operation of Section 12 of the Act.
22. On behalf of the plaintiff it was contended that the defendants acquired only the right, title and interest of the evacuee and not the absolute right of the Central Government free from all encumbrances and that therefore the defendants could not resist the plaintiff's right. This argument is based upon the terms of the auction sale. Ex. B-I is the sale notice issued by Messrs. Murray and Co., the auctioneer, setting out the terms and conditions of the auction. Clause (3) in that notice states that only the right, title and interest of the evacuee in the property will be auctioned. The certificate of sale, Ex. B-40, declares that the purchasers Messrs. Ratanchand, Parslmal, Sardarmal and Ranjitmal Chordia became the purchasers at a sale by public auction held in pursuance of the powers conferred under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The learned Judge, Kailasam, J., was inclined to take the view that the sale in favour of the defendants is not free from all encumbrances. The learned Judge observed as follows:
'Even if it is construed that the word 'encumbrances' includes easements also and that the property vested in the Central Government free from encumbrances, the property that was sold to the defendants was only the right, title and interest of the evacuee and therefore the defendants are not entitled to claim that their purchase was free of all encumbrances, that is easements also.'
With respect we are unable to agree with this view of the learned Judge. If the Central Government became entitled to the property or was vested with the property free from all encumbrances as the statute clearly provides, the holder of the encumbrance loses all his rights and there will be no question of revival of that right merely because what was purported to be sold by the Central Government was in terms only the right, title and interest of the evacuee. It is however unnecessary for us to deal with this question further as, in our opinion, the word 'encumbrances' in the context of this particular Act would not include the right of easement.
23. It is true that the defendants have built up the pathway and raised a substantial construction over it. But they did so with open eyes. After the judgment of the lower appellate Court in their favour the defendants constructed the building with undue haste. They did not pay heed to the notice issued to them asking them to desist from construction. They took the risk of the judgment of the lower appellate Court being set aside in second appeal by this Court. There is certainly no equity in their favour and we do not think that the loss which would result to the defendants by reason of the decree of the trial Court being; restored should at all be taken into account in deciding the rights of the parties.
24. In the result, the Letters Patent Appeal fails and is dismissed with costs.